Congressional Record: September 6, 2006 (Senate)
Page S9066-S9068
DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2007--Continued
Mr. ROCKEFELLER. Mr. President, I thank the distinguished Senator
from Alaska. It is late, and I understand that. I rise to address
something which is very important to me, and that is the Defense
appropriations bill that may appear to many to be insignificant
boilerplate language, when, in fact, is not that at all. Unfortunately,
the provision has an enlarged significance in
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this Congress as a result of the inexplicable and unpardonable failure
of the Senate to do something that it has never done before, and that
is to fail to pass intelligence authorizations for either fiscal year
2006 or fiscal year 2007.
Section 8086 of the Defense appropriations bill waives section 504 of
the National Security Act of 1947 until the enactment of the
Intelligence Authorization Act for fiscal year 2007. What does that
mean? Section 504 provides, with limited exceptions, that no
appropriated funds available may be obligated or expended for an
intelligence activity unless those funds were specifically authorized
by Congress; therefore, by the two Intelligence Committees.
This waiver is a standard part of the Defense appropriations bill.
Until this Congress, it has served the acceptable function of allowing
intelligence communities to begin spending money if the authorization
bill is not completed before the beginning of the fiscal year. Under
this waiver, as soon as the intelligence authorizations for any given
year are enacted, that authorization language would control.
In this Congress, however, the boilerplate language has become the
substitute for legislative authorization of intelligence activities
because the majority leader, to be honest, has refused to bring the
intelligence authorization bill to the floor for the past 2 years--for
the past 2 years.
The Senate's failure to pass this critical national security
legislation is unprecedented. Last year was the first time since the
establishment of the congressional Intelligence Committees that the
Senate failed to pass an annual authorization bill. From 1978 through
2004, the Senate had an unbroken, 27-year record of completing its work
on this critical legislation. The intelligence authorization bill has
been rightly considered, always, must-pass legislation. Regardless of
who controlled the Senate, regardless of who controlled the White
House, there was an understanding that the programs authorized by this
bill were too important to not have the input of the Congress through
the Intelligence Committees.
Unfortunately, because of an anonymous objection by a Republican
Senator, the majority leader decided to let this important national
security legislation die on the vine last year, for the first time, and
he appears intent on doing so this year again. The result of this
decision by the majority leader will be diminished authority for
intelligence agencies to do their jobs of protecting Americans. It also
will result in less effective oversight, which was essentially the 9/11
Commission's No. 1 call, and all of this at a time when the
intelligence community is undergoing the biggest restructuring in its
50-year history.
The annual intelligence authorization is the primary mechanism which
the Congress, through the Intelligence Committees, uses to provide
guidance and support to America's intelligence agencies, the heart of
our effort to protect America's national security.
At a time when our security depends so heavily on good intelligence,
when our national security has been endangered by not depending
sufficiently on good intelligence--or maybe the intelligence wasn't
good when it should have been--and we are in the midst of reforming and
modernizing our intelligence community, the Senate's failure to act on
this legislation is absolutely inexplicable to this Senator and to
virtually all the Members of the Intelligence Committees.
In reporting the resolution to establish the Intelligence Committee
in May 1976, since the first chairman on our side was the Senator from
Hawaii, Mr. Inouye, the Committee on Government Operations back then
wrote the following:
An essential part of the new committee's jurisdiction will
be authorization authority over the intelligence activities
of the Department of Defense, the Department of State, the
Federal Bureau of Investigation, and the Central Intelligence
Agency. Without this authority, the new committee would not
be assured the practical ability to monitor the activities of
these agencies.
They wrote that back then--and that is:
. . . to obtain full access to information which the
committees must have to exercise control over the budgets of
agencies in order to reduce waste and inefficiency, and to
impose changes in agency practices.
That is what they said.
The failure of the Senate to pass intelligence authorization for 2
years threatens to erode the ability of the Intelligence Committee to
carry out the mission assigned to it by the Senate. This failure has
consequences both immediate and long term. Our intelligence agencies
can continue executing the funding made available through the various
appropriations bills but without any guidance as to what they should do
from the Intelligence Committees.
I do not understand this.
The Appropriations Committee does an excellent job at providing
resources for the intelligence agencies, what they need to operate on.
But the roadmap for how the Congress expects those sources to be
executed comes from the authorization bill--which seems to no longer
exist. The sensitivity and importance of our Nation's intelligence
programs makes congressional direction essential every single year. But
the creation of an Office of the Director of National Intelligence in
2004, and the ongoing development of that office, makes the guidance
even more important now.
The fiscal year 2006 authorization bill contains 17 separate
provisions enhancing or clarifying the authority of the DNI. Those
provisions included additional authority to promote information
sharing, clarifying the DNI's role in managing human intelligence--all
of these, easy to say and difficult to do--providing flexibility in the
financing of national intelligence centers, how those centers were to
be set up, and elevating the DNI Inspector General to a statutory
position.
Those important provisions are now included in this fiscal year 2007
bill, and we should act on them as soon as possible. I do not think we
are going to, but we should.
In the longer term, the Senate's inability to debate and act on this
critical legislation will have a more lasting effect on congressional
oversight. Both the 9/11 and the Robb-Silberman commission on weapons
of mass destruction highlighted the importance of improving oversight
as a necessary component of reforming our intelligence capabilities.
Oversight.
The 9/11 Commission wrote:
Of all our recommendations, strengthening Congressional
oversight may be among the most difficult and most important.
In December 2004, the Senate took steps to strengthen the Senate
Intelligence Committee by eliminating member term limits. That had been
a long time coming. People were limited to 8 years. They just began to
get up to speed and then they were off. Now that has changed. It is at
the discretion of the majority leader and the minority leader.
We increased our staff and strengthened other procedures. But these
improvements were in a sense a hollow victory. Since enactment of the
reforms, the majority leader has emasculated the Intelligence Committee
by denying it the central tool to carry out oversight, and that is the
annual authorization bill which is called for under the law.
The majority leader's unwillingness to consider these bills is even
more puzzling because of the bipartisan effort that has gone into their
development on both sides of this House. Both the fiscal 2006 and 2007
bills passed the Intelligence Committee unanimously. Both were referred
to the Armed Services Committee where they were again approved
unanimously. Last year, the bill was also referred to the Homeland
Security and Governmental Affairs Committee, which suggested changes
that would have been included had we been discussing the bill along
with suggestions from the administration in a managers' amendment.
Last year's bill and this year's bill contain legislation focused on
four important areas about which I am going to talk briefly. I have
already mentioned the numerous provisions relating to the authority and
the operation of the Office of the DNI, the Director of National
Intelligence. The bill also contains additional provisions to foster
and improve information sharing and information access. Easy words,
hard to do.
Section 310 establishes a pilot program giving the Intelligence
Committee access to databases of other
[[Page S9068]]
nonintelligence agencies for the purpose of collecting intelligence on
counterterrorism or weapons of mass destruction. While this bill sits
on the calendar, that information is now outside the reach of the
intelligence community.
Many of my colleagues have decried the seemingly endless stream of
leaks of classified information. I join them in denouncing the leaks of
sensitive material. The authorization bill includes provisions
strengthening the authority of the DNI and the Director of the CIA to
protect intelligence sources and methods. It also includes a provision,
authored by Senator Wyden and adopted by the committee unanimously, to
increase the penalties for the unauthorized disclosure of a covert
agent.
Finally, the authorization bill contains numerous provisions intended
to improve oversight of the intelligence community, both from within
and from the Congress itself.
Section 408 is interesting. Section 408 of the bill proposes the
establishment of a statutory inspector general for the intelligence
community. I have said that. The Intelligence Reform Act of 2004 took a
first step toward that end by authorizing the Director of National
Intelligence to appoint an inspector general within the Office of the
Director. The DNI has done that, and I applaud him for doing so. But
the bill will strengthen that position and make it more accountable to
the Congress.
Section 434 of the bill strengthens accountability further and
oversight of the technical agencies by providing that the heads of the
National Security Agency, the National Reconnaissance Office, the
National Geospatial-Intelligence Agency are to be appointed by the
President with the Senate's advice and consent.
This is in the authorization bill, and if we were to pass it, this
would become effective. I think it actually comes as a surprise to many
of my colleagues that the head of an agency with as central a role in
the intelligence community as the National Security Agency is not
appointed with Senate confirmation. In fact, heads of the National
Security Agency have customarily only gone through confirmation in
connection with their military rank but not for their appointment to
the position of the Director of NSA. That is not considered.
Section 107 of the bill, sponsored in committee by Senators Levin and
Hagel, seeks to improve the timely flow of information to the
congressional Intelligence Committees. Similar language was included in
the intelligence reform legislation that passed in the Senate in 2004
but did not survive the conference. I applaud Senators Levin and Hagel
for their efforts with respect to this issue.
There are other provisions requiring specific information, including
a report on the implementation of the Detainee Treatment Act and a
separate report on the possibility of existence of clandestine
detention facilities. I am at a loss to understand what the objection
to this legislation is. Maybe somebody does not like the enhancement of
oversight. That is our job. That is why the committees were formed.
Maybe somebody doesn't want the DNI to have more authority or maybe
somebody thinks the Congress should not be getting timely access to
information about intelligence programs that are so important. But let
me remind all my colleagues that the authorization bill passed the
Intelligence Committee unanimously. If somebody has a problem with a
provision, bring up the bill, offer an amendment, debate, and vote.
That is the way the Senate works.
Amendment No. 4906
Because of the importance of getting the authorization bill enacted
and because I and all the members of the Senate Intelligence Committee
have been totally unable to make any headway on this at all now for 2
years, and because I have concluded that it will once again be ignored
by the majority leader, I send an amendment to the desk to strike
section 8086 of the pending legislation, the fiscal year 2007
Department of Defense appropriations bill.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legislative clerk read as follows:
The Senator from West Virginia [Mr. Rockefeller] proposes a
amendment numbered 4906.
The amendment follows:
(Purpose: To strike the section specifically authorizing intelligence
and intelligence-related activities)
On page 206, strike lines 10 through 16.
Mr. ROCKEFELLER. Mr. President, striking section 8086 would mean the
following: that none of the funds in this bill could be spent for
intelligence activities without an authorization bill. I do not know
how else to do it. I am reluctant to take this step because I do not
want our intelligence agencies to be caught without funding. But I see
no other way to force the Senate to bring into the consciousness, the
cerebral cortexes of the various Senators, that it is important to take
up and pass authorization bills.
This legislation is too important to be allowed to languish in
legislative limbo. I am at a loss to understand why the Senate cannot
complete action. It would be in no one's interest to not complete this,
not the Senate, not the Congress, not the intelligence community, nor
would it be in the national security interest of the United States.
Democrats are more than willing to quickly debate and pass much
needed national security legislation. Democrats know that it is
essential that we permit the men and women of the intelligence agencies
to continue their critical work on the front lines of the war in Iraq
and the war on terror.
In the meantime, to the men and women of the intelligence agencies, I
say that we stand with you. We are proud of your bravery and your
patriotism, and we thank you for your sacrifice, working in silence,
and in the shadows, against the threat that America faces.
(At the request of Mr. Rockefeller, the following statement was
ordered to be printed in the Record.)
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Congressional Record: September 6, 2006 (Senate)
Page S9068-S9069
FAILURE TO PASS AN INTELLIGENCE AUTHORIZATION BILL
Mrs. FEINSTEIN. Mr. President, I join Vice Chairman
Rockefeller in calling for the Senate to take up and pass the
Intelligence Authorization Act for Fiscal Year 2007. As has been said
already, this legislation is the primary way in which the Congress
directs the Nation's 16 intelligence agencies.
In writing this legislation, the Committee worked closely with the
Director of National Intelligence, or DNI, to identify new authorities
needed to protect our national security. The bill authorizes a pilot
program to allow intelligence agencies to better share information that
could help uncover and thwart a terrorist; empowers the DNI to build
information-sharing systems across the Federal Government; and creates
a strong inspector general for the intelligence community.
The bill also requires the intelligence community to explain how it
is complying with the Detainee Treatment Act and provide Congress with
information on any ``alleged clandestine detention facilities'' that it
may be operating and continues the process of intelligence reform begun
in 2004.
It is not surprising that the creation of the DNI and major
organizational changes across the Government's national security
apparatus left some things undone. This Intelligence authorization bill
makes a number of small but useful changes to allow the DNI and the
Nation's 16 intelligence agencies to operate on a day-to-day basis more
effectively.
These are a few of the important provisions in this legislation. But
here I would like to focus on language in the bill that was adopted on
a bipartisan basis at committee. The provisions, sections 304 and 307
of the bill, ensure that the congressional Intelligence Committees are
fully informed of all intelligence activities.
The National Security Act of 1947 requires the President to ``ensure
that the congressional intelligence committees are kept fully and
currently informed of the intelligence activities of the United States.
. .''.
Even more than other committees, the Intelligence Committee relies on
the executive branch to provide it with information. Without full and
timely notification of intelligence programs, problems, and plans, the
committee cannot judge whether agencies have adhered to the law, nor
can we judge whether changes in authorities or resources are needed to
better protect national security.
It was, in fact, Congress's lack of regular oversight that led to the
creation
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of the Senate Intelligence Committee in 1976. Following the Church
Committee's report on Executive abuses, the Senate established the
Committee to ``provide vigilant legislative oversight over the
intelligence activities of the United States to assure that such
activities are in conformity with the Constitution and laws of the
United States.''
Thirty years after the Senate Intelligence Committee was created,
however, it is not living up to its charge. Members of the committee
are not provided with sufficient information on intelligence programs
and activities to legislate or oversee to intelligence community.
Provisions in the stalled legislation--the Intelligence authorization
bill--would fix this problem.
A good example of how the system fails to work is the so-called
Terrorist Surveillance Program, which was publicly revealed last
December but which had not previously been briefed to the committees.
According to the White House, this National Security Agency program
was too sensitive to be briefed to the 15 Senators on the committee--
the 15 Senators hand-selected by the majority and minority leaders for
this assignment.
Instead, the President and Vice President decided to inform only 8 of
the 535 Members of Congress: the party leadership in both houses and
the leadership of the two intelligence committees.
The National Security Act does provide for limited briefings to these
eight Members of Congress but only for especially sensitive covert
actions. The NSA program is not a covert action.
The administration also points to statute saying that it must take
``due regard for the protection from unauthorized disclosure of
classified information relating to sensitive intelligence sources and
methods or other exceptionally sensitive matters. . .''
The 1980 Senate report accompanying this ``due regard'' provision
explained this provision more directly--and makes clear that it does
not allow the administration to restrict information from the committee
indefinitely as was done with the Terrorist Surveillance Program.
The report recognized ``that in extremely rare circumstances a need
to preserve essential secrecy may result in a decision not to impart
certain sensitive aspects of operations or collection programs to the
oversight committees in order to protect extremely sensitive
intelligence sources and methods.''
The ``due regard'' language that the administration cites was
intended, at most, to limit briefings on the most sensitive aspects of
operations, in extremely rare circumstances. It was also expected that
withholding this sensitive information would be a temporary measure.
This language was not intended to conceal the existence of entire
programs from all committee members.
So in effect, the White House has broadly interpreted the National
Security Act to void meeting its responsibility to inform Congress.
This Intelligence authorization bill's changes to the National
Security Act close the loopholes but, in fact, are far more generous to
the executive branch than many would like. The bill acknowledges that
there are times when not all Members have to be ``fully and currently''
briefed on all intelligence matters. However, in those cases, it
requires that all committee members receive a summary of the
intelligence collection or covert action in question.
This arrangement would allow the intelligence agencies to protect the
most sensitive details of sources and methods, but crucially, it would
allow the full committee to assess the legality, costs and benefits,
and advisability of an intelligence operation.
The authorization bill also changes a definition in the National
Security Act to make clear that the requirement to keep the committees
``fully and currently informed'' means that all Members will be kept
informed. Congress has allowed the intelligence community to brief only
the chairman and vice chairman on too many programs for too long.
I do not need to remind my colleagues that full committees, not a
single Democrat and Republican, vote to authorize programs and funding.
All Members must be informed if they are to perform their
Constitutional duties.
The pending authorization bill would make one additional change to
what it means for an intelligence activity to be authorized by
Congress.
Stemming from the wiretapping abuses in the 1970s and because of the
special challenges to conducting oversight of classified programs, the
National Security Act prohibits the use of appropriated funds for any
intelligence activities unless they are authorized by Congress. The
pending bill would specify that an activity can only be ``authorized''
if the members of the authorizing committees have been fully briefed on
it--or given a summary in the especially sensitive cases I described
before.
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